Software companies could prevent private copying of their works under copyright reforms, says Government

Software companies will be permitted to use "technological protection measures" (TPM) to prevent consumers making copies of their works for private use under planned changes to copyright law, the Government has said.21 Dec 2012

The Intellectual Property Office (IPO), an agency that operates with the Department for Business, Innovation and Skills (BIS), earlier this week announced that it would create a new "private copying" exception to UK law that would enable "a lawful owner or buyer of a copy of a work to reproduce that copy for their personal use".

However, under the reforms software companies will legitimately be able to configure their works to prevent consumers doing so, the IPO said.

"The Government recognises the importance of TPM to copyright owners as a means of hindering unlawful copying of their content," the IPO said in itsresponse to aconsultation (56-page / 680KB PDF) it launched on copyright reforms last year. "In the interests of transparency, any restrictions on use enforced by TPM should be made clear to consumers up front, at the point of sale."

Consumers will be able to apply to the Business Secretary through a "modified appeal provision" if they want to make a private copy of the works but are prevented from doing so by the TPM in place.

"The Government considers this is necessary to gain the full benefit of private copying, but does not want this provision to undermine the reasonable application of TPM by rights holders, particularly in new business models," the IPO said. "The Government will therefore introduce a modified appeal provision, which will enable the Secretary of State to consider the availability of suitable commercial offerings and impacts on business before taking action on TPM."

The IPO said that the private copying exception would be "narrow" and "technology-neutral" and would not allow lawful owners of works to "share copies with other people". It said that it "sees no reason in principle" why the private copying exception should not apply to digital content stored on cloud computing servers.

The IPO said that the Government had ruled out introducing a private copying levy. It said that rights holders were not likely to lose much, if any, revenues from the exception being introduced.

Copyright law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said that EU law requires that, where national copyright laws contain a private copying exception, rights holders are adequately remunerated to allow for that right. He said that the Government's plans could ignite a debate over whether rights holders would be adequately remunerated to allow for the private copying exception proposed.

"It is possible that both sides to this debate may have arguments that justify either the imposition of technical measures to ensure people cannot avail themselves of a private copy, or that the software houses are adequately compensated by the existing licence models," Connor said.

"These proposals demonstrate the continuing struggle to write legislation that reflects what happens in practice with private copying and the legislative framework which requires protections to be put in place for rights holders," he added.

Under the copyright reforms the Government said it would also allow a limited exception to enable researchers to carry out 'data mining' of publishers' work for non-commercial purposes providing they already have a "right to access" that material.

"This will enable key research without undermining publishers’ control over IT systems or commercial exploitation," the IPO said.

"The exception will not prevent a publisher from applying technological measures on networks required in order to maintain security or stability, or from licensing higher volumes of access to research outputs at an additional cost," it added. "To the extent that technological measures prevent a researcher benefiting from this exception, they will be able to appeal to the Secretary of State."

The Government has offered to "facilitate" discussions between publishers and researchers in a bid to make "licensing more effective". It wants the UK to be a "world leader in text and data mining techniques and services" and said that commercial exploitation of data mining should be "encouraged" in the longer term.

Data orcontent mining involves the use of technology to go through vast amounts of material in an automated way to extract information from it. Researchers are currently not permitted to use some software to read data from journal articles without specific permission from the copyright owners, regardless of whether or not the researcher has already paid to access that article.

Among the other reforms to the copyright exceptions regime will be new rights to use copyrighted works for parody and pastiche or for educational purposes, whilst the Government said it would also draw up new laws that allow libraries to copy "sound recordings, films and broadcasts ... solely to the extent necessary for non-commercial research and private study purposes" without having to gain the permission of rights holders.

The copyright reforms will contribute to £500 million of growth in the economy over the next 10 years, with "additional [annual] benefits" of approximately £290m also stemming from the changes, the Government claimed.

The IPO said that it would introduce draft legislation next year, with the reforms contained instatutory instruments.It claimed this approach would "minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner". The reforms should come into force in October next year, it added.

Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.